Approval of counsel in the Sheriff court – factors we will consider

We consider that you are capable of conducting most cases in the sheriff court. It is unlikely, other than in the most exceptional circumstances, that we would allow counsel in a case before the Justice of the Peace court.

We will only approve the employment of counsel where you can demonstrate that their employment is appropriate. When assessing sanction applications we will consider the whole facts and circumstances of the case.

Please ensure that you give us sufficient information in order that we can properly weigh up any factors present.

Factors likely to support the employment of counsel

Factors that we may take into account include:

  • Whether there is exceptional difficulty, complexity or novelty either of fact or in law.
  • Whether there is any exceptional specialty, difficulty or unusual circumstances involved in presenting the case or in cross-examining or examining witnesses.
  • Whether your client has any significant intellectual impairment that may affect their ability to understand and take part in court proceedings.
  • Whether the Crown intend to lead evidence from young children or vulnerable adults.
  • The number, nature or significance of the productions in the case.

Factors unlikely to support the employment of counsel

Factors that are unlikely to support the employment of counsel include:

  • The likely length of the trial.
  • The likely length of sentence in the event of conviction.
  • The need to lead evidence from an expert witness without reference to other factors.
  • The need to lead evidence through an interpreter, without reference to other salient points.
  • The leading of a special defence.
  • Reference to the Crown’s reliance on the Moorov or Howden doctrines without reference to other factors.
  • The fact that a your firm does not normally take instructions in criminal cases but that you wish to represent and existing civil or children’s client.
  • Just because counsel has been approved for a co-accused, it will not necessarily follow that it is appropriate to sanction counsel for all clients in the case.
  • Parity of representation between the Crown and defense.
  • You or number of solicitors from your firm will be on holiday at the time of the trial.
  • Approval was previously granted for counsel as the case was originally identified as a High Court prosecution and the client has established a rapport with counsel.

Other factors: examining or cross-examining an officer of court

Sympathetic consideration may be given to applications to employ counsel in cases where it is likely that you will require to cross examine another solicitor practicing in the same court, or a Sheriff, procurator fiscal or Sheriff Clerk.

You should address:

  • Why you accepted instructions in the case.
  • Why the case cannot be transferred to another solicitor.
  • That the evidence likely to be adduced is not formal in nature.

There may be situations where the evidence of a court official is to be challenged on the basis of their dishonesty or alleged dereliction of duty. In such cases, it may be appropriate to approve counsel without seeking transfer of the case to another solicitor.

Other factors: personal or individual circumstances

Circumstances would need to be exceptional in order for us to consider granting an approval to employ counsel in cases where you are unavailable due to personal, business or professional reasons.

In such circumstances, you should provide:

  • Why it is not possible to transfer the case to another solicitor or have it dealt with by another solicitor on an agency basis.
  • Detailed information on the attempts which have been made to involve another solicitor in the case and how the client may be prejudiced if counsel does not represent them in your absence.
  • Details of the arrangements that will be put in place so that counsel is properly instructed when attending court.

We are unlikely to grant sanction where:

  • No attempt has been made to secure alternative representation for the client.
  • The difficulty has arisen because of a clash of dates or the distant location of the court.

Other factors: sudden illness or death

Where you are unable to deal with a case because of a sudden illness or the illness or death of a partner or key member of staff, you should provide:

  • Information as to the other arrangements you have attempted to put in place such as transferring the case or employing a solicitor on an agency basis.
  • Details of the arrangements that will be put in place so that counsel is properly instructed when attending court.

Other factors: rural areas

In rural areas where there is no experienced local bar we may give sympathetic consideration to an application for approval for counsel. In the first instance, you should consider requesting approval for an Opinion from counsel to assist you in the preparation and conduct of the trial. Thereafter, we may approve counsel to conduct the case but only where this is considered appropriate.

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